Statute of Limitations Regarding Post Foreclosure Evictions

For the purpose of illustration in this article I will be referring to Texas statutes, rules, and justice training manuals due to the simple fact that to list all 50 states’ statutes of limitations would be far too laborious a task and would result in an article so voluminous it would be unreasonable to do so. This is where the readers’ due diligence comes into play. This goes to the old saying, ‘you can give a man a fish and for a day he will eat, but if you teach a man to fish he will never go hungry’. However, in general most states have a 2 or 3 year statute of limitations that governs the time in which an ejectment action can be filed.

The terms “forcible detainer” or “unlawful detainer” and “forcible entry and detainer” or “unlawful entry and detainer” presumes that for one to “detain” real property that the adverse party (lien holder) is entitled to the property by way of a perfected lien. Perfecting a lien in most states requires that the foreclosing party or the party seeking the eviction be a party of record.

We can look at any statute of limitation as a clock that runs for a strictly limited period of time. The question is; when does this clock start ticking? Some states make it clear within the body of its statutes that this period begins to run at the time of the foreclosure sale as where in other states, such as Texas, the statutes are ambiguous. Texas Civil Practice and Remedies Code §16.003 provides as follows: “Except as provided by Sections 16.010, 16.0031, and 16.0045, a person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues.”

It can be and has been argued in my own case that where otherwise provided in law that the limitation period begins to run on day 4 after having received a 3 day notice to vacate. This stands to reason since the party claiming a right to possess the property is so graciously (note the sarcasm) allowing the possessor to remain on the property for an additional 3 days in order to vacate. On day 4 the clock starts ticking. This means that the adverse party now has 2 years to successfully oust the possessor from the property.

Many people believe as I once did that by filing suit for wrongful foreclosure, trespass to try title, or some other adverse claim in a higher court that by doing so the suit would bar the lower court from hearing the action for possession. Not in all cases. In Texas and in most other states the higher court, be it the state district court or the federal court does not have the authority to abate an action in the lower court in a case for simple possession. This is outlined in an online training manual used by colleges that school individuals who aspire to become justices of the peace titled, Forcible Detainer Lawsuits: Issues and Traps For the Unwary By: Fred Fuchs of the Texas Rio Grande Legal Aid in where Fuchs states that in cases where there is a suit for possession filed in the justice court and an adverse claim filed in another venue, the jurisdiction of each court run concurrent.

The Fuchs doctrine has often been reflected in case law, “Pending district court litigation over validity of foreclosure does not deprive the justice court of jurisdiction of eviction suit. Similarly, the existence of a pending state district court lawsuit or federal court lawsuit challenging a foreclosure sale does not automatically raise a genuine issue of title, thus depriving the court of jurisdiction of the eviction suit. Wilhelm v. Federal National Mortgage Assn., 349 S.W.3d 766, 769 (Tex. App. – Houston [14th Dist. 2011), no pet.)

Another issue to be aware of is that in most states the lower courts in where an ejectment action is to be filed the court lacks the jurisdiction to hear arguments in regard to title. Lower courts are usually courts of limited jurisdiction in where the court is strictly limited to hearing arguments in regard to possession. The goal there would be to prove to the court that the party seeking eviction is not entitled to possession, but this is very difficult to prove without going to title.

If the limitation has run a party seeking possession would be subject to the laches doctrine, “1. Unreasonable delay or negligence in pursuing a right or claim – almost always an equitable one – in a way that prejudices the party against whom relief is sought. 2. The equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim when the delay or negligence has prejudiced the party against whom relief is sought. Black’s Law Dictionary 2nd Pocket Edition (2001) Id. 395, 396.

Steve Skidmore

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